Murphy Operator v Gladstone Ports Corporation (No 7) - [2021] QSC 18

SUPREME COURT OF QUEENSLAND

CITATION:

Murphy Operator & Ors v Gladstone Ports Corporation (No 7) [2021] QSC 18

PARTIES:

MURPHY OPERATOR PTY LTD
ACN 088 269 596

(first applicant)

TOBARI PTY LTD
ACN 010 172 237

(second applicant)
SPW VENTURES PTY LTD
ACN 135 830 036
(third applicant)
v
GLADSTONE PORTS CORPORATION LIMITED
ACN 131 965 896
(respondent)

FILE NO/S:

BS No 7495 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:
Supreme Court at Brisbane

DELIVERED ON:

12 February 2021

DELIVERED AT:

Rockhampton

HEARING DATE:

2 February 2021

JUDGE:

Crow J

ORDER:

1.   The application filed 11 December 2020 is dismissed.

2.   If the parties cannot agree as to the appropriate cost order, then they are to file and serve written submissions on costs as follows:

a.   The applicants within 7 days herein; and

b.   The respondent within 14 days herein.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – DISCLOSURE OF REPORTS – where the proceeding is a group proceeding – where group-wide expert reports regarding quantum are required for court ordered mediation – where plaintiff-specific expert reports regarding liability and quantum for the lead plaintiffs are required for the initial trial – where, necessarily, the group-wide expert reports and the plaintiff-specific expert reports will differ in regards to analyses and modelling - where the expert reports prepared for mediation must be disclosed under r 212 of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant applies, pursuant to r 367 of the Uniform Civil Procedure Rules 1999 (Qld) or, in the alternative, s 103ZA of Civil Proceedings Act 2011 (Qld), to have the requirement to disclose mediation reports dispensed with on the basis that the differences between group-wide and plaintiff-specific expert reports would expose the expert or experts to much more extensive cross-examination than usual – whether it is in the interests of justice to dispense with the requirement for the group-wide mediation reports to be disclosed

Civil Proceedings Act 2011 (Qld), s 53, s 103ZA
Uniform Civil Procedure Rules 1999 (Qld), r 212, r 367, r 428

Allianz Australia Insurance Ltd v Mashaghati [2018] 1 Qd R 429; [2017] QCA 127, followed
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, followed
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
Green & Ors v Pearson [2014] QCA 110, cited
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141; [1997] QCA 450, followed
Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373; [2004] QSC 329, followed
Murphy Operator Pty Ltd v Gladstone Ports Corporation [2019] 3 Qd R 225; [2019] QSC 12, followed
Parr v Bavarian Steakhouse Pty Ltd [2001] 2 Qd R 196; [2000] QCA 429, followed

COUNSEL:
L W L Armstrong QC, with M J May, for the applicants

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Murphy Operator v Gladstone Ports Corporation (No 7) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QSC 18
Decision Date: 12 February 2021

CaseChat Overview and Summary

In the matter of Murphy Operator Pty Ltd v Gladstone Ports Corporation, the applicant, Murphy Operator, sought to have the requirement to disclose mediation expert reports dispensed with. This proceeding is a group proceeding, and the applicant sought to avoid disclosing the group-wide expert reports prepared for the mediation in accordance with r 212 of the Uniform Civil Procedure Rules 1999 (Qld). The applicant argued that the disclosure of these reports would result in extensive cross-examination of the expert, which would be more burdensome than usual due to the differences between the group-wide reports and the plaintiff-specific reports regarding liability and quantum for the lead plaintiffs. The respondent, Gladstone Ports Corporation, argued that the current regime for the disclosure of expert reports under r 212 of the UCPR is deliberate in its choice in promoting transparency in expert reports and is intended to discourage partisanship in expert reports.

The court was required to decide whether it was in the interests of justice to dispense with the requirement for the group-wide mediation reports to be disclosed. The court considered the arguments presented by both parties and ultimately decided that the requirement to disclose the group-wide expert reports should not be dispensed with. The court found that the differences between the group-wide reports and the plaintiff-specific reports did not necessarily mean that the expert would be exposed to much more extensive cross-examination than usual. Furthermore, the court found that the current regime for the disclosure of expert reports under r 212 of the UCPR was deliberate in its choice in promoting transparency in expert reports and was intended to discourage partisanship in expert reports.

The court dismissed the applicant's application to have the requirement to disclose mediation reports dispensed with. If the parties cannot agree as to the appropriate cost order, then they are to file and serve written submissions on costs as follows: a. The applicants within 7 days herein; and b. The respondent within 14 days herein.

Orders

Orders of the court

1. The application filed 11 December 2020 is dismissed.

2. If the parties cannot agree as to the appropriate cost order, then they are to file and serve written submissions on costs as follows:

a. The applicants within 7 days herein; and

b. The respondent within 14 days herein.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

In particular, the applicant relies upon s 37(a)(c)(d)(ii) and s 53 of the Civil Proceedings Act 2011 (Qld). Section 53(1) of the Act provides:[5][5]Civil Proceedings Act 2011 (Qld) s 53. “53Evidence from ADR process(1)Evidence of anything done or said, or an admission made, at an ADR process about the dispute is admissible at the trial of the dispute or in another civil proceeding before the court or elsewhere only if all parties to the dispute agree.” Alternatively, the respondent argues that the Queensland regime for the disclosure of expert reports as currently set out in r 212 of the UCPR is deliberate in its choice in promoting transparency in expert reports and is intended to discourage partisanship in expert reports. The issue of partisanship in expert reports has been a longstanding concern of the courts.[6] In Parr v Bavarian Steakhouse Pty Ltd,[7] Thomas JA observed:[8]“[22]If the court is to restrict the meaning of these rules, there is a difficulty in drawing the line. The rules have in recent years made considerable inroads into the area of legal professional privilege. In 1994 order 35 rule 5(2) provided that a document consisting of a statement or report of an expert is not privileged from disclosure. The validity of that rule was upheld in Interchase Corporation Limited (in liq.) v. Grosvenor Hill (Queensland) Pty Ltd (No. 1). It has now re-appeared as r. 212 (UCPR) and the consequences of non-disclosure of such statements or reports are stated in r. 423 (UCPR). It is unsurprising that in relation to personal injury and fatal accident claims a more specific and far-reaching system has been devised requiring early exposure of the claimant’s case than in other cases.”(Footnotes omitted.) [6]Fox v Percy (2003) 214 CLR 118 at 167 per Callinan J.[7][2001] 2 Qd R 196.[8]Parr v Bavarian Steakhouse Pty Ltd [2001] 2 Qd R 196 at 201. In Murphy Operator Pty Ltd v Gladstone Ports Corporation,[9] I discussed the importance of cases such as Interchase[10] and Mitchell Contractors[11] in explaining the Queensland position on draft expert reports. It may well have, as Mr Armstrong QC for the applicant put it, a “chilling effect” upon an expert to be told that any draft reports and indeed any documents generated by the expert and information recorded in one form or another by an expert must be disclosed. [9]Murphy Operator Pty Ltd v Gladstone Ports Corporation Ltd [2019] 3 Qd R 225.[10]Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141.[11]Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373. However, an expert who is non-partisan ought to have nothing to fear, as that expert will be able to explain any alteration in their opinion and the reasons for it. Of course, there is a considerable forensic advantage in being able to identify changes in opinion, facts, figures, or assumptions that may arise between a draft and final copy of an expert report when cross-examining the report’s author. This is a deliberate and strong incentive to any expert to keep their reports non-partisan.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Murphy Operator & Ors v Gladstone Ports Corporation (No 7) [2021] QSC 18
PARTIES:	MURPHY OPERATOR PTY LTD ACN 088 269 596 (first applicant) TOBARI PTY LTD ACN 010 172 237 (second applicant) SPW VENTURES PTY LTD ACN 135 830 036 (third applicant) v GLADSTONE PORTS CORPORATION LIMITED ACN 131 965 896 (respondent)
FILE NO/S:	BS No 7495 of 2017
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	12 February 2021
DELIVERED AT:	Rockhampton
HEARING DATE:	2 February 2021
JUDGE:	Crow J
ORDER:	1. The application filed 11 December 2020 is dismissed. 2. If the parties cannot agree as to the appropriate cost order, then they are to file and serve written submissions on costs as follows: a. The applicants within 7 days herein; and b. The respondent within 14 days herein.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PROCEDURAL ASPECTS OF EVIDENCE – EXPERT REPORTS AND EXPERT EVIDENCE – DISCLOSURE OF REPORTS – where the proceeding is a group proceeding – where group-wide expert reports regarding quantum are required for court ordered mediation – where plaintiff-specific expert reports regarding liability and quantum for the lead plaintiffs are required for the initial trial – where, necessarily, the group-wide expert reports and the plaintiff-specific expert reports will differ in regards to analyses and modelling - where the expert reports prepared for mediation must be disclosed under r 212 of the Uniform Civil Procedure Rules 1999 (Qld) – where the applicant applies, pursuant to r 367 of the Uniform Civil Procedure Rules 1999 (Qld) or, in the alternative, s 103ZA of Civil Proceedings Act 2011 (Qld), to have the requirement to disclose mediation reports dispensed with on the basis that the differences between group-wide and plaintiff-specific expert reports would expose the expert or experts to much more extensive cross-examination than usual – whether it is in the interests of justice to dispense with the requirement for the group-wide mediation reports to be disclosed Civil Proceedings Act 2011 (Qld), s 53, s 103ZA Uniform Civil Procedure Rules 1999 (Qld), r 212, r 367, r 428 Allianz Australia Insurance Ltd v Mashaghati [2018] 1 Qd R 429; [2017] QCA 127, followed Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21, followed Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited Green & Ors v Pearson [2014] QCA 110, cited Interchase Corporation Ltd (in liq) v Grosvenor Hill (Queensland) Pty Ltd (No 1) [1999] 1 Qd R 141; [1997] QCA 450, followed Mitchell Contractors Pty Ltd v Townsville-Thuringowa Water Supply Joint Board [2005] 1 Qd R 373; [2004] QSC 329, followed Murphy Operator Pty Ltd v Gladstone Ports Corporation [2019] 3 Qd R 225; [2019] QSC 12, followed Parr v Bavarian Steakhouse Pty Ltd [2001] 2 Qd R 196; [2000] QCA 429, followed
COUNSEL:	L W L Armstrong QC, with M J May, for the applicants